Terms of Use
Except as otherwise expressly agreed to by Syncapse in writing, information regarding Syncapse products and services is subject to change without notice.
Information about Syncapse products and services made available on and/or through this website shall not constitute a representation, warranty or other commitment by Syncapse with respect to any product or services unless otherwise expressly agreed to by Syncapse in writing.
Without limiting the generality of the foregoing, Syncapse hereby disclaims all warranties, express or implied, as to the accuracy, suitability for any purpose or completeness therefore.
This website also makes available, through hyperlinks, various articles, written materials, and published works (“Written Materials”) that have not been written or published by Syncapse, Inc. The hyperlinks will take you to websites not controlled or maintained by Syncapse. The Written Materials (and their content) are not the responsibility of Syncapse and any opinions, information, or facts contained in such Written Materials do not necessarily represent the point of view of Syncapse. Any copying, distribution, reproduction, retransmission, or modification of any of the Written Materials or any information or materials appearing in such Written Materials, whether in electronic or hard copy form, is subject to the prior written permission of the author and publisher of such Written Materials.
End User Terms of Service for the Syncapse Platform
BEFORE USING SYNCAPSE’S PLATFORM (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” THEREIN (“CUSTOMER”) AND SYNCAPSE CORP. (“SYNCAPSE”). THSE TERMS SHALL GOVERN CUSTOMER’S RIGHT TO ACCESS AND USE THE SYNCAPSE PLATFORM (THE “ORDER FORM”). THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND SYNCAPSE, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION BY SYNCAPSE AND CUSTOMER OF THE ORDER FORM (THE ORDER FORM AND THESE TERMS COLLECTIVELY REFERRED TO AS THE “AGREEMENT”).
1. The Syncapse Platform.
1.1 Access and Availability. Syncapse will make the Syncapse Platform available to Customer and individuals who are authorized by Customer to use the Syncapse Platform on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Syncapse at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”). Syncapse hereby grants the Customer and its Users a limited, non-exclusive right to access the Syncapse Platform during the Subscription Term and in accordance with this Agreement (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”). Customer’s Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by Syncapse with respect thereto). “Syncapse Platform” means the online, website application provided by Syncapse via http://www.Syncapse.com or at such other designated URL as Syncapse may assign from time to time (including all components thereof, on an individual and collective basis).
1.2 Subscription Term. Customer’s initial subscription term for the Syncapse Platform commences on the expected “Subscription Start Date” stated in the Order Form, or, if later or if none is provided in the Order Form, the day User login names and a password are issued to Customer to access the Syncapse Platform under the Order Form (the “Subscription Start Date”). The Subscription will continue for the “Initial Subscription Term” specified in the Order Form (the “Initial Subscription Term”), and will automatically renew for successive one (1) year periods (each, a “Renewal Term”) at the Syncapse Platform subscription price in effect on a generally commercially available basis at the time of the renewal, unless (i) either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the Initial Subscription Term or the Renewal Term then in effect or (ii) the parties mutually execute a separate order form for such renewal, in which case (a) the separate mutually executed renewal order form will be deemed to be an addendum to and become part of the “Order Form” for purposes of this Agreement, and will therefore be governed in part by these Terms and will become a part of this Agreement, (b) the renewal term set forth in such separate mutually executed renewal order form will be deemed to be a “Renewal Term” hereunder and (c) this sentence will continue to apply for further subsequent renewals. The Initial Subscription Term plus all Renewal Terms are referred to herein as the “Subscription Term”.
1.3 Customer Affiliates. The Subscription is granted solely to the Customer and its Users, and not any other third parties (including not to any of Customer’s Affiliates), except as otherwise set forth in the Order Form. Customer’s Affiliate’s may purchase Subscriptions to the Syncapse Platform under separate Order Forms, provided that if any Affiliates are granted any right to access or use the Syncapse Platform hereunder, Customer will remain fully responsible and liable for all acts and omissions of such Affiliates and will cause such Affiliates to comply with the provisions of this Agreement. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party.
2. Confidentiality
2.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.
2.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
2.3 Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).
2.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
2.5 Injunctive Relief. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.
3. Fees and Taxes.
3.1 Fees. The Customer shall pay to Syncapse all of the fees specified in the Order Forms. Except as otherwise provided in the Order Forms, all fees are quoted in United States currency; fees are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and fees are non-refundable.
3.2 Invoicing and Payment. Fees for the Syncapse Platform and Support will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, fees are due within 30 days from the invoice date.
3.3 Overdue Payments. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid.
3.4 Suspension of Service. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Syncapse reserves the right to suspend the Syncapse Platform without liability to Syncapse, until such account is paid in full.
3.5 Taxes. The Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than Syncapse’s income taxes. If Syncapse pays any such taxes on the Customer’s behalf, the Customer agrees to reimburse Syncapse for such payment unless the Customer provides Syncapse with a valid exemption certificate authorized by the appropriate taxing authority.
3.6 Expenses. If Syncapse is required to incur in any additional costs or expenses in providing Support to the Customer, Syncapse shall first obtain written approval from Customer
4. Proprietary Rights.
4.1 Proprietary Rights. The Syncapse Platform, the Results and all intellectual property rights therein and all intellectual property rights relating to the provision of the Support are owned or licensed by Syncapse. Except for the Subscription granted hereunder, nothing in this Agreement gives the Customer any right, title or interest to the Syncapse Platform or the Support.
4.2 Results. Customer shall retain all right, title, and ownership in and to the Results. Notwithstanding, Customer acknowledges that in generating the Results, Syncapse may use certain materials, products, algorithm processing, training material, best practices and other property that belongs to Syncapse (“Syncapse Property”). The parties agree that Syncapse shall retain all right, title, and ownership in and to the Syncapse Property, including all intellectual property rights pertaining thereto. Syncapse hereby grants to Customer a royalty-free, worldwide, non-exclusive, temporary license to use the Syncapse Property solely for internal business purposes.
4.3 Restrictions. Customer shall not: (i) modify, translate, or create derivative works based on the Syncapse Platform; (ii) create any link to the Syncapse Platform or frame or mirror any content contained or accessible from the Syncapse Platform, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Syncapse Platform; (iv) or access the Syncapse Platform in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Syncapse Platform.
5. Term and Termination.
5.1 Term of the Agreement. This Agreement commences on the Effective Date and continues until the Subscription to the Syncapse Platform granted in accordance with this Agreement have expired or been terminated.
5.2 Term of Syncapse Platform Subscription. The Subscription to the Syncapse Platform commences on the Activation Date and continues for the term specified in the Order Form (the “Subscription Term”).
5.3 Termination of the Agreement. Either party may terminate this Agreement at any time by providing the other party with thirty (30) days prior written notice provided, however, that any Order Forms outstanding at the time of termination shall continue to be governed by this Agreement until all Subscriptions granted hereunder either terminate or expire. Furthermore, this Agreement and any Subscriptions granted hereunder may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay Syncapse the fees agreed in the Order Form unless Customer terminates the Agreement for cause in which case Customer shall be entitled to a prorated amount of any pre-paid Subscription Fees equal to the remaining number of whole monthly units left in the Subscription Term following the effective date of termination.
5.5 Surviving provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 2 to 11.
6. Warranties and Disclaimers.
6.1 Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement (including these Terms).
6.2 Functionality Warranty. Syncapse warrants that the Syncapse Platform will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable documentation provided by Syncapse.
6.3 Security Warranty. Syncapse has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Syncapse Platform at reputable third party Internet service providers and hosting facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that Customer Content will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Syncapse, whether by accident or otherwise.
6.4 Disclaimer. The Syncapse Platform uses public application programming interfaces (“API”) from external platforms to function, such as but not limited to Facebook, Twitter and other social media websites. Syncapse cannot and does not exercise any control over these public API and external platforms. Changes made to these API by third parties may impact and/or diminish the functionality and performance of the Syncapse Platform, including delaying response times and hindering the Syncapse Platform ability to draw data from one or more social media websites. Except as expressly provided herein, SYNCAPSE DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. Syncapse does not warrant that the Syncapse Platform will meet the Customer’s requirements or that the operation of the Syncapse Platform will be uninterrupted or error-free. Further, Syncapse does not warrant that all errors in the Syncapse Platform can or will be corrected.
7. Customer’s Conduct and Use Guidelines.
7.1 Ownership of Customer Content. The Customer retains all right, title and interest in and to all Customer Content. “Customer Content” means the media content in the form of text, images and videos, among others, uploaded by Customer into the Syncapse Platform as well as Customer’s advertisement materials and User generated content. Customer hereby grants Syncapse a perpetual non-exclusive license to use for its own purposes the Customer Content and the data provided by Customer to Syncapse in connection with the Syncapse Platform, other than personally identifiable information that may be considered private or sensitive. Such data may be used by Syncapse for internal statistical and marketing reports in the aggregate or in statistical form only without disclosure of Customer’s Confidential Information.
7.2 Customer Content. Customer is responsible for User’s compliance with this Agreement. Customer shall comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to the Customer in connection with the Customer Content and the use of the Syncapse Platform, including without restriction, the EU Data Protection Directive and any other laws applicable to the Customer related to privacy, publicity, data protection, electronic communications, consumer child protection laws, obscenity, anti defamation laws and anti-spamming laws. Customer is responsible for the collection, legality protection and use of Customer Content that is used in connection with the Syncapse Platform.
7.3 Use Guidelines. The Customer shall use the Syncapse Platform for internal business purposes as contemplated by the Agreement and shall not: (i) wilfully tamper with the security of the Systems or tamper with other customer accounts of Syncapse, (ii) access data on the Systems not intended for the Customer, (iii) log into a server or account on the Systems that the Customer is not authorized to access or otherwise translate any underlying software in the Syncapse Platform in such a manner that it appears to be part of Customer’s own or a third party website, (iv) attempt to probe, scan or test the vulnerability of any Systems or to breach the security or authentication measures without proper authorization; (v) wilfully render any part of the Systems unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Syncapse Platform or make the Syncapse Platform available to a third party other than as contemplated in this Agreement; (vii) attempt to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithms in the Syncapse Platform; (viii) use the Syncapse Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (ix) provide to third parties any evaluation version of the Syncapse Platform without Syncapse’s prior written consent; (x) deep link to any page of the Syncapse Platform or otherwise link in a manner that bypasses Syncapse’s homepage for the Syncapse Platform; or (xi) use the Syncapse Platform in violation of Syncapse’s Privacy Policy available at www.Syncapse.com.
7.4 Customer Social Media Sites. The Customer shall be responsible for the content of all the Sites used in connection with the Syncapse Platform. “Social Media Sites or Sites” means the social media destinations chosen Customer including but not limited to a Facebook Page, a Word Press or movable type blog, Twitter account, or YouTube channel. Customer agrees that it will not use the Syncapse Platform in connection with any page, blog or website that contains material that (i) is libellous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of a third party or is otherwise unlawful; (iii) contains viruses, Trojan horses, worms, time bombs or harmful programming routines; or (iv) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation.
8. Limitation of Liability.
8.1 Limitation of Liability. NEITHER PARTY, ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES AND CHARGES PAID BY THE CUSTOMER FOR THE SYNCAPSE PLATFORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
8.2 Exclusion of Consequential and Related Damages. THE PARTIES AGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE.
8.3 The limitations of liability set forth above shall not apply to any indemnification provided by either party hereunder.
8.4 Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer.
8.5 No action against either party arising out of this Agreement may be brought by the other party more than one year after the cause of action has arisen.
9. Mutual Indemnification.
9.1 Syncapse Indemnification. Syncapse shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Syncapse Platform, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if Syncapse reasonably believes that the Customer’s use of any portion of the Syncapse Platform and/or Support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Syncapse may, at its expense: (i) procure for the Customer the right to continue using the Syncapse Platform or Support; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Syncapse Platform and/or Support as set out herein. Syncapse shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Syncapse Platform or Support with other equipment or software not supplied by Syncapse or in a manner not consistent with Syncapse’s instructions. THIS SECTION 9.1 SETS FORTH SYNCAPSE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Customer Indemnification. The Customer agrees to indemnify and hold Syncapse harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Syncapse by a third party arising from or relating to Customer’s use of the Customer Content or the Syncapse Platform in violation of this Agreement.
9.3 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
10. General Provisions.
10.1 Entire Agreement. This Agreement, inclusive of the Order Forms and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and the Order Forms now or hereafter appended hereto, the terms of the Order Form shall govern.
10.2 Marketing. Customer agrees that Syncapse may use Customer’s name and logo on Syncapse’s website, and as a part of a general list of Syncapse’s customers for use and reference in corporate, promotional and marketing literature. Additionally, Customer agrees that Syncapse may issue a press release identifying Customer as a customer of Syncapse in accordance with Customer’s standard guidelines. Customer agrees to be a reference for Syncapse over the lifetime of this Agreement and, upon reasonable request from Syncapse, play a role as keynote speaker or presenter at appropriate Syncapse event.
10.3 Relationship of Customer and Syncapse. The parties are independent contractors. This Agreement does not create a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.
10.4 Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
10.5 Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law by providing the non-assigning party with prior written notice thereof.
10.6 Solicitation. During the Subscription Term and for a period of one (1) year following the termination or expiration of this Agreement (the “Restricted Period”), Customer shall not employ, offer employment to or solicit the employment of or otherwise entice away from the employment of Syncapse any individual employee or independent contractor employed or engaged by such other party during the Restricted Period without the prior written consent of Syncapse. Nothing herein shall prohibit or prevent either party from soliciting employees, or former employees of the other party for employment by general solicitations, such as advertising or websites, not specifically targeted at specific employees of the non-hiring party.
10.7 Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the City of New York in the State of New York, USA, and all courts competent to hear appeals therefrom. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.8 Notices. Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the third business day after mailing; (iii) the next business day after sending by confirmed facsimile; or (iv) the next business day after sending by email. Notices to Syncapse shall be addressed to the Legal Department. Notices to the Customer shall be addressed to Customer’s signatory unless otherwise designated in the Order Form.
10.9 Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
10.10 Facsimile Transmission/Counterparts. This Agreement (including any Order Form) may be executed and delivered by facsimile or email, and upon receipt such transmission shall be deemed delivery of an original. This Agreement (including any Order Form) may be executed in several counterparts each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument and notwithstanding their date of execution shall be deemed to bear the day and year first above written.
10.11 Electronic Signatures. The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event shall the electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
10.12 Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
